Enforcing Agreement to Rent to Nonprimary Resident

Q An applicant wants to rent one of my rent-stabilized apartments, but says that he won't be using the apartment as his primary residence. He is willing to agree in writing to rent the apartment as a nonprimary resident and therefore be exempt from rent stabilization, paying a rent that is above the legal regulated amount. If we both sign this agreement, will a court enforce it if the tenant later reneges and claims to be rent stabilized?

A Probably not. Courts have refused to enforce these types of agreements. For example, in one case, an owner rented a rent-stabilized apartment to a tenant under a written agreement that said the tenant wouldn't use the rent-stabilized apartment as his primary residence and would pay a rent of $2,600 per month. That rent was higher than the legal regulated amount.

The arrangement continued through several renewals, at increasingly higher rents, until the tenant refused to agree to a $5,000 per month renewal rent. The owner then sued the tenant for nonpayment of rent, claiming that the apartment was exempt from rent stabilization because the tenant's rent was over $2,000 per month.

An appeals court ruled that the apartment was covered by rent stabilization and should be returned to the rent-stabilized status it had before the owner and tenant signed the original lease. The nonprimary residence agreement was void, the court said. Therefore, the original $2,600 per month rent as well as all other renewal rents were illegal rents [Bedford Apts. Co. v. Lewison, February 2005].